The collapse of bar passage rates in California

My colleague Paul Caron has helpfully displayed the data of the performance of California law schools in the July 2016 California bar exam. It's worth noting that the results aren't simply bad for many law schools; they represent a complete collapse of scores in the last three years.

The chart here shows the performance of first-time California bar test-takers who graduated from California's 22 ABA-accredited law schools in the July 2013, 2014, 2015, and 2016 administrations of the exam. The blue line in the middle is the statewide average among California's ABA-accredited law schools. (The overall passage rate among all ABA-accredited law schools is usually a point or two lower than this average.)

The top performers are mostly unchanged from their position a few years ago. The middle performers decline at roughly the rate of the statewide average. But the bottom performers show dramatic declines: from 65% to 22%, and from 75% to 36%, to identify two of the most dramatic declines.

It's true that changes to the applicant pool have dramatically impacted law schools, as I identified three years ago and as continues to hold true. There have been fewer applicants for law schools; those applicants are often less qualified applicants--those with lower LSAT scores and UGPAs than previous classes; and schools are not shrinking their class sizes quickly enough to respond to the decline in quality. For some of the more at-risk schools, they face significant attrition each year as their very best students are transferring to higher-ranked institutions, further diluting the quality of the graduating classes. (I've also occasionally read critiques that law schools are not "doing enough to prepare" students to take the bar exam, but I highly doubt law schools have dramatically changed their pedagogy over the last few years to cause such a decline.)

And the decline in bar pass rates in 2014 was the first in a longer stage of declining scores, as I explained back then. And it's not even clear that pass rates have reached bottom.

I noted earlier this year that the new mandate from the ABA that 75% of graduates of law schools must pass the bar exam within two years of graduation will uniquely impact California--despite bar test-takers being far more able in California, they fail at much higher rates. Whether bar pass rates will improve for some of these schools in the future, or whether the state bar intervenes to ease its scorning practices, remains a matter to be seen.

Note: I did not start my Y-axis at 0% to avoid unnecessary white space at the bottom of the graph, and it is designed to show relative performance rather than absolute performance.

The Electoral College won't stop Trump--but it may change how political parties pick electors in 2020

The presidential election is quickly approaching--on December 19, in state capitals around the country, presidential electors will assemble and vote overwhelmingly for Donald Trump and for Hillary Clinton. It is almost guaranteed that Mr. Trump will secure at least 270 electoral votes, the minimum necessary, and probably something close to the 306 electoral votes he is presumed to receive. And while there have been discussions among "Hamilton Electors" to vote for someone else, the Constitution is designed to thwart such conspiracies across states, and Mr. Trump's presumptive lead is all but insurmountable. (Please note that while the Electoral College can elect someone other than Mr. Trump, or can elect no one at all, I am simply describing, as the links above suggest, why it is, among other things, a lead that is "all but insurmountable.")

Last week, five presidential electors in three states have filed lawsuits in federal courts seeking to strike down laws that purport to bind electors to vote for the candidates they are pledged to support. They seek to ensure that they have the right to vote for whomever they wish, regardless of the candidate they are supposed to support, and to have a court conclude that such laws instituting criminal or civil penalties are unconstitutional. (For the record, I agree that such laws may be unconstitutional.) The litigation seeks to limit the scope of Ray v. Blair, the 1952 Supreme Court decision that affirmed the ability of states to impose (non-binding) pledges on presidential electors. (The enforceability of such pledges was left for another day.)

But litigation occurs in a particular context, and there are significant procedural problems to these claims. Those problems may prevent courts from reaching the merits of such claims. These claims all seriously struggle from the likely defense of laches, as the electors have brought claims just days before the Electoral College is scheduled to meet--when they have been nominees for many months, and when they knew they would be called to serve as of November 9. It is not immediately obvious that the state laws in California and Colorado empower state election officials to remove "faithless" electors from their offices, which suggests that abstention might apply, or simply the application of a canon of statutory interpretation that invokes the constitutional avoidance doctrine. The pleadings of some do not make it obvious that the electors intend to violate their pledge, only that they want to liberty to do so, which may (perhaps) lead to ripeness issues or even the failure to state a claim.

But even setting these procedural issues aside, the curious nature of these claims is where they have been filed. They are purporting to be an "anti-Trump" movement. But, these are Clinton electors in states carried by Mrs. Clinton! That is, their movement would undermine the Democratic candidate's ability to succeed in the Electoral College! And even total victory in these states would yield a grand total of zero Trump electors voting for someone other than Mr. Trump!

Now, I suppose there are two long-game purposes in this effort. The first is for these electors to force a kind of "national conversation" about the independent judgment of electors and to (quite publicly) encourage Trump electors to join them and vote for someone other than Mr. Trump. (Of course, they were already voting for someone other than Mr. Trump.) While freeing Clinton electors from their pledge has zero impact on the bottom line--if every Clinton elector voted for, say, John Kasich, then Trump still wins with 306 electoral votes--it could spark discussion with other electors.

The second is that a ruling in one court, perhaps appealed to a circuit court or even the Supreme Court, would have a ripple effect in other jurisdictions with Trump electors. Given the procedural hurdles already in place, it is unlikely that this could happen, but remains a possibility.

Of course, further buried within these electors' lawsuits is that they have largely been filed by former (and, perhaps, current) supporters of Bernie Sanders, some of whom before even Election Day expressed public displeasure at the prospect of casting votes for Mrs. Clinton. While the salutary effort is something in the vein of "anti-Trump," in reality it seems to be driven more by anti... well, Democratic establishment, at least for these particular Colorado and Washington electors.

(It's also worth noting that multiple Trump electors have expressed opposition to Mr. Trump--two electors, one from Georgia and another from Texas, intend to resign when the Electoral College meets by refusing to show; a third, from Texas, once supported Mr. Trump but has since written a piece published in the New York Times opposing him.)

So these lawsuits are not really designed to stop Mr. Trump from securing 306 electoral votes (or, really, the 270 electoral votes he needs to win). But it has created some rather curious alliances. For instance, the Republican elected officials called to defend the law in Colorado have come out quite strongly against the plaintiffs--that is, these Republicans are aggressively defending Mrs. Clinton's electoral vote total in Colorado. And the Colorado Republican Party has intervened in the case--and the Colorado Democratic Party has not.

That said, it is, I think, less curious than one might expect, at least the behavior of Republicans and when viewed through a (perhaps) Rawlsian framework. One might take the myopic view and claim that Colorado Republicans are trying to defend Mr. Trump's election, but that strikes me fairly unlikely--consider the two long-game purposes I enumerated above, which are exceedingly remote; and consider that the direct impact of the litigation would undermine Mrs. Clinton's position far more than Mr. Trump's.

Instead, consider what it would mean in a state--any state, regardless of your partisan preference--if you had fairly settled expectations of the roles of electors, and even a law that carried some generic threat against electors who acted against their pledge, and those settled expectations were called into question. As a member of a political party or a loyal partisan official, such a result would be fairly horrifying. After all, it would mean that your formerly-loyal slate of electors would now be open to influence; and even if your party's slate of electors did not win this particular election, it would also affect your slate of electors in future elections when you did win.

Despite the fact that electors may prefer independence (and that the Constitution, in my view, mandates it!), parties certainly do not prefer it. It is a reason they are empowered in most states to choose the slates of presidential electors. And it is a terrific loss of power if those electors now expect to act freely--indeed, so freely that they may undermine the party's nominee. The rational behavior of partisan officials, then, would be to defend such laws quite vigorously, regardless of partisan affiliation.

I expect, then, that this behavior of presidential electors will fairly significantly alter the behavior of political parties selecting slates of presidential electors in 2020, particularly if parties are worried that the legal pledges and settled expectations from previous elections have been called into grave doubt. Party reforms are some of the easiest reforms, because they require no new laws. But I would expect, at least in some jurisdictions, to see to following changes.

First, I would expect to see delays in the selection of slates of electors. Parties typically nominate slates of electors in the spring or summer, often before the parties' nominating conventions (and sometimes even before the parties' nominees are known). But in most states, such slates need not be submitted until just weeks before the November election date.

Second, parties are likely to engage in far greater vetting of such nominees. By postponing the selection process, parties might be more inclined to choose electors who have already gone on record expressing support of the party's presumptive nominee.

Third, parties might institute more control over who qualifies as electors for their party. They often include rules that one must be a member of that party, such as someone who voted in that party's primary. But they may require longer periods of party affiliationor greater demonstration of loyalty before qualifying as an elector.

Fourth, parties may defer to the presumptive nominee in selecting slates of electors. It's understandable why Bill Clinton was an elector in New York, of course! And greater control to candidates would ensure greater loyalty for nominees.

It is the case, I think, that these electors' efforts to sue to undo state pledges will likely fail; and that even in success the Electoral College will not meaningfully affect the settled expectations of the outcome of this election. But after all this, when the dust settles, I anticipate some significant change in behavior from political parties to fend off future efforts from electors to undermine their own preferences.

New effort (doomed to fail) calls for presidential electors to collectively exercise independent judgment

Presidential electors will meet in state capitals around the country on December 19. They’ll vote for the next president and vice-president. We assume most of them will vote for Donald Trump and Mike Pence. But a group of anti-Trump electors, mostly Democrats, have sought to form an alliance around a consensus candidate who is neither Trump nor Hillary Clinton. They remind us that electors are supposed to exercise “independent judgment.” They hope to collectively exercise independent judgment--something of an oxymoron.

But the Framers expressly designed the Electoral College to thwart such schemes. They’ve repeatedly failed in the past, and they’re all but doomed to fail this year.

The Constitution's design

During the federal convention of 1787, the Framers worried that selection of the president would be the subject of political “intrigue” or fall into the hands of a “cabal” of decision-makers. Alexander Hamilton explained in Federalist 68 that the Electoral College would avoid such “mischief.” If electors assembled in a single place, Hamilton noted, it would invite “heats and ferments,” “cabal, intrigue and corruption,” and a selection process gone wrong.

Instead, electors from each state would assemble in that state, separated from the electors of all the other states. They would meet on the same day across these states, “detached and divided” from another. Hamilton emphasized that that could not engage in any “combinations” that would affect their independent judgment. Electors would vote for a president and a vice president based upon the deliberations in their own states, not from any agreement among electors.

Early attempts for electors to conspire with one another across the states failed badly. As originally designed, electors voted for two candidates: the candidate with the most votes became president, and the candidate with the second-most votes became vice president. Federalists in 1796 wanted John Adams as president and Thomas Pinckney as vice president. Electors tried to conspire to ensure that Pinckney received fewer votes than Adams; otherwise, a tie would be sent to the House of Representatives. They also needed to ensure that both Adams and Pinckney secured more votes than rival Thomas Jefferson.

But too many Adams electors cast their second votes for someone other than Pinckney. In the end, Adams secured 71 electoral votes and Pinckney 59—but Jefferson received 68 electoral votes, good enough for second place and to serve as Adams’s vice president. Federalists had been thwarted by the decentralized design of the Electoral College.

The Twelfth Amendment permitted electors to designate which candidate would be the president and which would be the vice president. And no effort to thwart a candidate's election has succeeded since--in part because the system is designed to thwart such efforts.

Intrastate electoral independence

When electors exercise their independent judgment, they do so because of the deliberative process that occurs within their state and almost never collectively crosses state lines. In 1828, for instance, seven electors voted for William Smith as Andrew Jackson’s vice president instead of John Calhoun—all seven were in Georgia. Thirty electors in 1832 voted for William Wilkins as Andrew Jackson’s vice president instead of Martin Van Buren—all thirty were from Pennsylvania, as was Wilkins. And in 1836, twenty-three electors abstained from voting for vice president instead of supporting Democratic nominee Richard M. Johnson—all twenty-three were from Virginia.

Indeed, as long as electors are casting votes (many years ago, proposals for an "automatic" Electoral College were floated, eliminating the human element), it is good for electors to exercise independent judgment. In 1872, for instance, it was good that most Democratic electors voted for someone other than Democratic presidential nominee Horace Greeley, who died after Election Day. Or for eight electors to vote for someone other than William Howard Taft’s running mate James Sherman, who died a week before Election Day.

But exercising independent judgment as individual is quite different from conspiring collectively toward a common outcome, and particularly different from conspiring across state lines.

Political parties

It's true that we have something quite different than what the Framers anticipated in 1787 (but was quite well-established by 1804 when the Twelfth Amendment was ratified): the two-party political system that still dominates our election system. The rise of political parties created stability in the process—while electors could not conspire across states, their common partisan affiliation and the party’s selection of a nominee brought stability to the process across the country. Voters (or state legislatures selecting electors) knew well in advance that the electors would support a particular candidate--the candidate that party nominated. These were party loyalists.

While it would be essentially impossible to conspire during the meeting of the Electoral College, as a practical matter, partisan loyalties offered contrasting visions for presidential electors, and the Electoral College quickly became a fairly stable and routine selection process between the candidates of two parties. Indeed, such loyalty became so obvious that today almost all states have stopped listing the names of electors on the ballot, listing on the electors.

This description provides two important conclusions. First, the ex ante nature of presidential electors' loyalties makes for fairly easy affiliation with a single presidential candidate. It has been an impossible effort to corral presidential elector support across the states ex post, sometime after Election Day but before the meeting of the electors.

Second, the two-party system did change how elections occurred--we ended the expectation that races would be resolved in Congress. Since 1804, just two presidential and one vice-presidential election have been resolved in Congress--the election of 1824, where four candidates secured electoral votes but no one secured a majority; and the election of 1836, where just enough Virginia electors cast votes for someone other than the presumptive vice president that the election was sent to the Senate (which voted for the presumptive vice president anyway). As originally designed, the thought was that independent judgment would rarely result in a majority, sending the election to the House--a notion that collective deliberation would not occur!

An contingent election in the House

Furthermore, it's worth emphasizing that this Electoral College effort will not send the presidency to Hillary Clinton. It is, at best, designed to turn at least 38 Republican electors (and perhaps some Democratic electors) to vote for someone else (perhaps John Kasich), depriving Mr. Trump of at least 270 electoral votes and sending the election to the House of Representatives. But, as I've noted before, if the Republican-led House and the Republican-controlled state delegations--led by individuals like Paul Ryan--did not stop Mr. Trump at much easier points early in this campaign (such as during the Republican National Convention)--I find it hard to believe it would choose to deny him the presidency at this moment. Again, while it would be within the House's prerogative to select among the top three vote-getters in the implausible event no one secured 270 votes on December 19, it is yet another unlikely result.

Collective action

Finally, it takes only a moment to recognize the massive collective action problem, built into the design of the Electoral College. What assurance to electors have that their counterparts in the other 49 states (and the District of Columbia) will act as promised? Even if many did agree in advance, it is quite another to trust that such decisions are being made elsewhere.

And there is a potential unraveling problem in the digital age--while conspiracies might have been impossible in 1787, they face the unraveling of a decision-making process across time zones. Electors typically meet at noon in state capitals--noon, local time. (A few around 1 pm, and perhaps others scattered around these hours.) Early-voting electors have no guarantees that later-voting electors are voting as promised; and later-voting electors can observe if early-voting electors defected, which increases the likelihood of their own defection.

An effort doomed to fail

This piece, I hope, describes why such an effort is doomed to fail. It might be the case that, as a normative matter, we would prefer electors to conspire across state lines. But the system is designed to thwart such efforts--and quite successfully. We have had 53 presidential elections since the passage of the Twelfth Amendment; the outcomes have never been altered by "faithless" electors, and only once (the vice presidential election of 1836) was the race sent to Congress, which resolved it as would have been expected from popular voting, anyway.

It might be the case, as many have suddenly discovered, that the Framers had wisdom in authorizing the independent discretion of electors. But it is also the case that the Framers decidedly created a system that would be built upon independence during the meeting of electors and thwart conspiracies among electors--perhaps another element of our constitutional design that could inform what it is likely to occur this December 19.

The Vermont Supreme Court oral argument in Cruz and Rubio "natural born citizen" litigation

You may have long forgotten about the "natural born citizen" litigation in the 2016 presidential election, which I chronicled this spring. One can be forgiven, because, as hot as the topic was, Ted Cruz dropped out of the race, most cases disappeared, and little has been thought about the matter (much less about the even more tenuous and rare litigation surrounding Marco Rubio). My forthcoming Fordham Law Review piece chronicles the procedural paths these cases took, urging courts to exercise caution before needlessly plunging into disputes that the political process could readily solve, or areas where the state legislature failed to give them express jurisdiction.

Procedure took center stage in Vermont.

The plaintiff, H. Brooke Paige, was one of the first to file a claim challenging Messrs. Cruz's and Rubio's status as "natural born citizens." Mr. Paige filed pro se and sued both candidates and the state of Vermont. The case was dismissed. Mr. Paige appealed, again pro se. And the Vermont Supreme Court scheduled 30 minutes of oral argument for November 30, 2016. Messrs. Cruz and Rubio waived the opportunity to appear at oral argument. The oral argument has been uploaded.

The Vermont Supreme Court did care about procedural matters and asked Mr. Paige almost exclusively about those procedural points. First, as neither Messrs. Cruz nor Rubio were on the general election ballot, one justice wondered whether the dispute was moot--but Mr. Paige emphasized they were on the primary ballot. (Later analogies to abortion mootness exceptions arose.)

Another justice asked that the Constitution has a requirement as to who can serve as president; but does that extend the same as to who can run for president? Mr. Paige identified them as the same standard.

As to standing, Mr. Paige claimed he sought ballot access in Vermont.

The government opened with a mootness claim, which the Court challenged, but the government answered that while mootness could be an issue in election cases, it was not a problem in this case, where the plaintiff was responsible for many of the delays.

The government then noted the speculative future of the claim and the breadth of citizenship claims that might need to be raised. When the court later noted that its previous mootness case included the fact that Barack Obama was ineligible for another election, the government tried to raise the greater speculative nature of the political process. But the court pressed back that "capable of repetition yet evading review" inherently speculate about the future.

The court also mused that this exception often refers to the plaintiff's injury, as in the case with abortion cases; but, the court noted, if he has standing, what are the odds the plaintiff would face an election against someone born to foreign-born parents? That, the court said, might be a different case, as it seemed quite likely Mr. Paige would run again and face someone in that citizenship posture. But, another justice pressed back that it seemed like an advisory opinion, as it would be conditioned on "if" Mr. Rubio or someone else ran for office.

The court then asked about standing--a statute says that an election may be contested by any voter in the process. The government described the standing as something ministerial, such as the conduct of the election itself; or to matters like voter intimidation. But those are about the validity of the election, the government said, and the statute does not extend to challenges about qualifications.

The government moved back to the questions of Mr. Paige as a candidate challenging Messrs. Cruz and Rubio and argued that he was not truly a competitor in the election, such that he did not have standing.

The court started to worry about competitor standing--suppose Mr. Obama ran for governor in Vermont as a resident of Illinois? The government conceded that his general election opponent might have standing in that case.

All in all, the court muddled through a series of standing, mootness, and statutory issues, with virtually no time spent on the merits. It's unlikely we'll see any surprises... but only time will tell.

Fictional Attorney of the Month: Fred Gailey

Miracle on 34th Street is an iconic Christmas film starring Maureen O'Hara as Doris Walker and and Natalie Wood as her daughter Susan. The story revolves around a no-nonsense single mother who raises Susan not to believe in fairy tales like Santa Claus.

While much revolves around the life of Kris Kringle and the sales department at a New York City Macy's store, the film's denouement is really a courtroom drama. Doris's neighbor, Fred Gailey (played by John Payne), is an attorney who befriends Kris. When Kris faces legal action declaring him to be insane, Fred quits his job at a law firm and represents Kris in court. In the end, Fred's clever presentation of the evidence (including a display of many mailbags of letters addressed to "Santa Claus") and disarming personality help secure a dismissal.

Slopegraph of electoral votes and popular votes for presidential candidates

After my perspective on electoral vote and popular vote margins--in which I argued that the popular vote is meaningless--I thought about how Electoral College and popular vote margins related to one another. I took a stab at a visualization by creating a slopegraph.

This was much more challenging than I thought. And perhaps it's more deceptive than informative. But why not give it a shot and let the critiques come....

I wanted to show the relationship between electoral votes and popular votes. I started by taking the raw popular vote totals of each candidate--this could have been as a percentage of electoral vote, but 1968 really screwed things up and messed with the visualization if I were using the raw electoral vote totals as the left data point, so I took the slightly less perfect version of the raw vote totals. I started from 1944, which had just 531 electoral votes, in comparison to today's 538, and some other deviations along the way.

Then I opted for the percentage of the two-party popular vote margin, which was also imperfect as a kind of comparison--it might lead to significant fluctuations if there is a particularly significant third-party candidate who draws votes disproportionately from one candidate.

In order to do the slopegraph on two different Y axes, I opted to calculate Z-scores for each side. That offered the relative performance between electoral votes and between popular votes, and it offered some comparable scale between the two from 1944 to 2016.

You can see a couple of significant differences between the electoral vote "landslides" of 1972 (Nixon winning 520 electoral votes, dark green) and 1980 (Reagan winning 489 electoral votes, light green). In '72, Nixon snagged a whopping 61.8% of the two-party popular vote. But in '80, Reagan secured just 55.3% of the two-party popular vote.

There's not much of a rhyme or reason between the performance in the Electoral College and the popular vote--except that we might notice particularly low-performing popular vote winners: Bush in 2000 (271 electoral votes, blue) had the razor-thin electoral advantage; somewhat healthier were Trump in 2016 (306 electoral votes, pending December 19, red) and Kennedy in 1960 (303 electoral votes, orange).

In any case, perhaps after all the flaws I've identified and the meaningless of the popular vote, anyway, such a slopegraph is of less than even marginal value. But here it is, if you find it of interest.

The National Popular Vote is a pretty terrible way to change our way of electing the president

Given that Hillary Clinton is on pace to outperform Donald Trump in the national popular vote but lose the electoral vote (and the presidency), this currently-meaningless scenario is renewing calls to alter or abolish the Electoral College. The most pressing plan is the National Popular Vote, a compact between the states to award their electoral votes to the winner of the national popular vote once 270 electoral votes' worth of states agree to do so--effectively circumventing the Electoral College and using the selection of electors on a nationwide rather than statewide basis. Having recently been approved in New York, 165 electoral votes' worth of states have approved the plan.

I want to set aside the issue of whether the Electoral College should be (actually or effectively) abolished for a moment. There are some good theoretical grounds, I think, why the Electoral College--at least, a system designed to recognize individual states and all residents in a state as a proxy for political power rather than simply raw voter totals--retains some (admittedly, imperfect!) merit. Instead, this argument will focus exclusively on the means of the National Popular Vote, as a legal matter and as a practical matter. On both grounds, I think it falls quite short.

As a legal matter, I have written extensively that the compact is unconstitutional absent congressional consent. States are prohibited from entering into interstate compacts with one another without the consent of Congress. The Supreme Court has slowly carved out exemptions to this provision and now (or most recently) only requires consent for compacts that affect the balance of power between the federal and state governments or among the several states. The decision of some states to change the balance of power among presidential electors--essentially, prior to an election, ensuring that non-compacting states' electors are irrelevant to the presidential election--is the kind of shift of power among states that requires congressional consent under even the most generous construction of the Compact Clause. As this process was designed to avoid Congress--and because I think congressional consent is unlikely in any event--the compact would fail. (More details can be dug out of those articles.)

There have been other concerns raised by other commentators--that the compact would improperly strip the House of its power to choose a president in a contingent election when no candidate secured a majority; that the state legislature's plan to award electors on a basis other than the decision of the people in that state is prohibited; that the compact may run afoul of the Voting Rights Act for certain jurisdictions with sufficiently minority populations.

As a practical matter, the decision to change presidential elections at a state level without including a uniform national plan for elections, or empower Congress to do so, is deeply problematic. A recent, and quite significant, effort to amend the Constitution took place in 1970, and even it fell short of the likely required federal power we would need to regulate presidential elections. A nice summary from CQ Almanac shows some of the things a federal amendment was designed to do. For instance, the constitutional amendment guaranteed some uniformity in voter qualifications:

"The electors of President and Vice President in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature, except that for electors of President and Vice President, the legislature of any State may prescribe less restrictive residence qualifications and for electors of President and Vice President the Congress may establish uniform residence qualifications."

Additionally, the proposed amendment provided a times, places, and manner provision for presidential elections, similar to such a provision for congressional elections:

"The times, places, and manner of holding such elections and entitlement to inclusion on the ballot shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations.

But there are no such provisions for the National Popular Vote. I've written about the "invisible federalism" that exists within the Electoral College. Right now, fifty-one jurisdictions set their own rules. That means a true national popular vote would require some significant centralization of our electoral process, some of which was baked into the 1970 proposed constitutional amendment. Consider some things that ought to be nationalized in a presidential election:

Uniform voter qualifications. States have some fairly dramatic differences in the qualifications for voters. Some bar anyone ever convicted of a felony from voting, others permit felons imprisoned to vote. Some in the future may lower their voting age, as they have done in the past. Some have different standards for the mentally ill. When faced with such an option to the proposed amendment, Congress rejected it; but it would likely need to be an element of any future effort.

Uniform voting procedures. States set different absentee and early voting requirements. They set different residency requirements. Some have voter identification laws and others don't. Some open their polls at different hours. Some have all mail-in elections. Recount procedures trigger differently in different states. The proposed constitutional amendment got part of the way there in permitting Congress to regulate such procedures if it deemed such laws necessary to preserve uniformity.

Uniform ballot access standards. Even more so in an election like the one that took place in 2016, state permit different candidates to appear on the ballot. Evan McMullin and Jill Stein appeared on the ballot in a handful of jurisdictions. States like Texas have extremely early ballot access deadlines for independent candidates. Indeed, an effort to keep Donald Trump off the ballot in Minnesota would have wreaked havoc in a national popular vote total.

Standard ballot content. Consider, for instance, California including a dozen ballot propositions on its presidential ballot, boosting turnout; or hotly-contested United States Senate races, which influence turnout. We may see some oddities in turnout simply because of the other races that happen to appear on the ballot--and if we want a truly national election, we ought to aspire to more uniform standards.

A requirement to hold a popular election in the first place. And under the current system, states are not even required to hold a popular election in the first place. A state legislature could strip its citizens of the right to vote in presidential elections if it so desires, something like many states near the Founding did, or like Colorado did in 1876. Of course, such a decision might cut off the nose to spite the face... but remains within the realm of possibility. (A version of this challenge would be a state's future decision to use instant run-off voting, which offers different challenges in tabulating the votes from that jurisdiction--in a true national election, we would need to decide whether first past the post or an alternative system would be used. This is hypothetical at the moment because every state currently uses first past the post.)

One rejoinder I've heard goes something like this: "Yes, the votes are all commingled, but that doesn't really mean anything. After all, the electoral votes are all commingled in the final totals, too, even though there are separate elections that have occurred using different systems."

But I've never understood this rejoinder. It's something like saying, "Yes, I understand you planned to eat roast beef, mashed potatoes, green peas, and apple pie tonight. But because they're all going to end up in your stomach anyway, there's no difference if we simply blended them all together before consuming them."

You see, our present electoral system holds fifty-one separate contests. States can do whatever they want within their electoral process--they're going to get a fixed number of electoral votes, and whatever they do to determine who gets those votes (or, more precisely, who the electors will be) is up to each state. Yes, at the end of the day, the votes are combined, but only after the results have been limited to the boundaries of that particular state.

Now, it's also the case that many elections are administered at the county level, and those county-level decisions affect statewide elections--the format of the ballot, the type of ballot used (optical scan or direct-recording electronic voting machine), local races, the training for poll works, and so on. And perhaps we have to accept some lack of uniformity in our electoral process simply because of the expansive country we live in. But it may be worth thinking carefully about how uniform our elections should look (perhaps drawing inspiration from other countries that maintain both national and local election systems), and what that ought to look like in a constitutional amendment. The National Popular Vote offers absolutely no opportunity to ask these questions.

Finally, I've mentioned before that we tend to prefer majority winners in our electoral system, and we have seen that the Electoral College can turn fairly small margins into rather lopsided victories, a kind of affirmation for the president (mostly, I think, a happy and incidental effect of the system, not a part of its design). Only some presidents secure more than 50% of the popular vote but all secure a majority of the electoral vote (or the House chooses the president by a majority of states). A runoff or some guarantee that the winner gets 50% of the vote--or a nationalized instant run-off process. But the National Popular Vote makes no such guarantee. Perhaps we are ready to say that the person who gets the most votes wins, as we often do in other elections where a plurality winner takes office. But it is worth considering whether that, too, should be a part of the conversation of a new presidential election system--something that simply cannot be accomplished under the National Popular Vote.

It may well be that Americans are ready for a new system of electing the president, the normative or theoretical reasons a matter beyond the scope of this post. But in doing so, the National Popular Vote is a fairly ineffective way of doing so, and, as a cure for the problems perceived by many, may ultimately be worse than the disease.

The coming reckoning for non-JD legal education

As JD enrollment falls and non-JD enrollment increases at law schools, leading to a dramatic increase in the percentage of legal education focused on a non-JD student body, it's worth considering what non-JD legal education looks like, where it's going, and what the future may hold. It's a story of some unusual and under-discussed factors that portend a coming reckoning. (And this assumes demand remains fairly strong--recent reports suggest foreign countries may begin to cut back on sending foreign students to the United States for education if a trade war begins, or if immigration and international travel priorities change.)

As I've noted before, one in ten students enrolled in law schools in the United States are not part of a JD program, a number likely to continue to rise:

The American Bar Association defines three categories of non-JD degrees: "academic masters degrees for non-lawyer," "post-JD law degrees for practicing lawyers and/or foreign lawyers seeking to practice in the United States" and "research and academic-based doctorate level degrees." The second category, usually LLM degrees, have historically been the largest contingent (at least according to conventional wisdom), and the first category is among the fastest growing (again, at least according to conventional wisdom).

The ABA does not accredit non-JD programs. Instead, the ABA's task is limited to "acquiescence" of a new program. The ABA offers some rather onerous regulations that schools must meet for the JD program, but they offer no guarantee or review of the non-JD programs, except for very limited purposes:

ABA accreditation does not extend to any program supporting any other degree granted by the law school. Rather the content and requirements of those degrees, such as an LL.M., are created by the law school itself and do not reflect any judgment by the ABA accrediting bodies regarding the quality of the program. Moreover, admission requirements for such programs, particularly with regard to foreign students, vary from school to school, and are not evaluated through the ABA accreditation process. The ABA reviews these degree programs only to determine whether their offering would have an adverse impact on the law school's ability to maintain its accreditation for the JD program. If no adverse impact is indicated, the ABA "acquiesces" in the law school's decision to offer the non-JD program and degree.

I sadly must qualify statements above as "according to conventional wisdom" because, as noted, the ABA does not collect data or evaluate matters like incoming student metrics or outcome performance of non-JD graduates. To do so might be a challenge, of course, given the variety of programs that offer quite different things.

But I'll focus on one particular kind of degree to start: the "post-JD law degree" for "foreign lawyers seeking to practice in the United States." In 2015, there were 6529 bar exam test-takers (including repeaters) who attended law school outside the United States. Virtually all of them (4754, or 73%) took the New York bar. Combined with the 1142 who took the California bar, over 90% took these two states' bar exams.

In both these states, and in most others, bar exam test-takers must have additional education at an ABA-approved law school. New York sketches some basic requirements for LLM programming to qualify an individual for the bar, as does California.

But note the gap between the ABA and the state bars: the ABA does not actually accredit these programs or "reflect any judgment" "regarding the quality of the program." But the state bars condition foreign graduates to secure a degree at an ABA-accredited school--even if the degree itself is not approved by the ABA.

This, of course, means that any of the typical factors one would consider in an accreditation process--including admissions standards, or quality control measures for graduation, like bar pass rates or employment outcomes--do not exist for such programs. Of course, the Department of Education, or other accrediting bodies, may have other things to say about such programs. But it means that there are two sets of programs operating out of ABA-approved law schools: ABA-approved JD programs, and ABA-"acquiesced" non-JD programs.

If one examines the cumulative bar pass rates of non-US law graduates--most of whom have been required to complete a program at an ABA-accredited law school--and compares them to the pass rates of ABA graduates, the results are quite striking. The overall bar pass rate for ABA graduates has been in decline for several years, drifting down from 74.3% in the February & July administrations in 2011 down to 64.4% for the administrations in 2015. (These test results include all test-takers, including repeaters, those who took multiple states' bar exams, those who were not recent law school graduates, and test-takers in United States territories.) But those who were educated outside of the United States--and almost all of whom secured a degree from a program at an ABA-accredited school--now sit at a meager 28% overall pass rate, a slight decline in recent years. (UPDATE November 19: see below.)

(It might be worth noting that New York's pass rate of 68% is fairly typical of the overall pass rate of 64%, and the 31% New York bar pass rate for non-US law graduates is also fairly typical of the 28% overall pass rate for non-US educated test-takers. That's despite California's lower-than-average bar pass rates being an unusually high component of the non-US law graduate bar exam test-takers.)

Of course, non-US attorneys are still just a sliver of overall bar exam test-takers, particularly because they are concentrated in just two jurisdictions. The chart to the left shows the tota number of test-takers for these categories.

Perhaps, of course, bar pass rates should not be the touchstone for accrediting bodies. And perhaps the incentives are quite different in reviewing such programs.

But it is hard to believe that attention won't shift toward the non-JD market, particularly as it grows in a semi-unregulated fashion. Perhaps the consumer advocacy interests are different from those who are already attorneys in another country seeking to study in the United States, or for non-JD degree-seekers who do not intend to take the bar exam. Only time will tell whether a reckoning is coming.

Display note: I did start the y-axis for non-JD percentage at a non-zero number to avoid excessive white space, but as it displays relative changes in value as a percentage, I think it is not terribly deceptive.

UPDATE November 19: A careful reader wondered about the evidence behind this claim. It's worth referring to a 2014 NCBE "Bar Examiner" report on foreign lawyers who took the New York bar. 75% of them had completed an LLM, and 25% had completed programs abroad that met the New York requirements (e.g., of similar duration and based on English common law). It includes some other breakdowns about the countries of origin of these students and their pass rates based on that country.